ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00019237
A Childcare provider
Eamon Gallagher, Solicitor
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Date of Adjudication Hearing: 15/05/2019
Workplace Relations Commission Adjudication Officer: Shay Henry
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969 and section 7 of the Terms of Employment (Information) Act, 1994 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints
The complainant alleges she was dismissed following a message being sent, purportedly from the complainant to the respondent on social media. The complainant alleges that no procedures were used
Summary of Complainant’s Case:
The complainant started employment on the 13th of August 2018 with the respondent as a cook and worked ten hours per week. On the 9th of December 2018 another employee – the complainant’s sister - was shown a screen-shot of a message in which it appeared as though the complainant had complained about a work-related matter to a friend but that the message was mistakenly sent to the respondent, on social media. The employee, to whom this screen-shot was shown, informed the complainant about the allegation. The complainant has no record on her social media or her phone of this message. She contacted the respondent but received no response. The respondent refused to forward the message/screen-shot to the complainant’s sister whom she told to notify the complainant that she was dismissed. The complainant wasn't given a valid reason for dismissal and the respondent didn't take proper action to dismiss/notify the complainant herself that she no longer held this position.
The complainant was never furnished with her terms and conditions of employment and was not paid holiday pay.
Summary of Respondent’s Case:
On 7th December the respondent received a Facebook Message from the complainant in which she made disparaging work-related remarks. The respondent believes that the complainant did not intend that the respondent should have had sight of the message. On the 9th December the respondent called to the house of the sister of the complainant (Ms B) who was also an employee of the respondent, in order to clarify that they remained friends. The respondent did not inform Ms B that her sister had been dismissed. The respondent expected that the complainant would turn up for work the following day and intended arranging a meeting with her then to discuss the incident and other shortcomings. The complainant did not turn up for work and no contact was made. It would appear that a Snap Chat message was sent by the complainant on 9th December but as the respondent does not use Snap Chat as a method of communication she did not see the message until 22nd January 2019.
Findings and Conclusions:
There was no reference in the complaint form, or prior to the hearing, in relation to holiday pay and therefore I do not intend to adjudicate on that matter.
The obligations regarding an employer to furnish payslips are outlined in Section 4 of the Payment of Wages Act 1991. I do not have jurisdiction in this matter.
Terms of Employment
In correspondence submitted in advance of the hearing the complainant alleged that she did not receive a copy of her terms and conditions of employment.
The Terms of Employment (Information) Act, 1994 requires;
3.—(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—
(a) the full names of the employer and the employee,
(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),
(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,
(d) the title of the job or nature of the work for which the employee is employed,
(e) the date of commencement of the employee's contract of employment,
(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,
(g) the rate or method of calculation of the employee's remuneration,
(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,
(i) any terms or conditions relating to hours of work (including overtime),
(j) any terms or conditions relating to paid leave (other than paid sick leave),
(k) any terms or conditions relating to—
(i) incapacity for work due to sickness or injury and paid sick leave, and
(ii) pensions and pension schemes,
(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,
(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.
It is clear from the evidence of both parties that the respondent did not comply with this statutory obligation and therefore this complaint is upheld.
Dismissal – Industrial Relations Act
It is the complainant’s case that she did not send the offending message to the respondent. However, she acknowledges that she sent a similar message to a third party and therefore she must bear some responsibility for the ensuing problems. In the absence of her terms and conditions of employment it is understandable that she would not be familiar with the appropriate disciplinary procedures to be used in the event of an issue arising. I accept her evidence that she immediately sought to meet with the respondent and, having received no response, and coupled with the information communicated to her by her sister, she could reasonably have concluded that she was dismissed. The onus was on the respondent to deal with this matter in an appropriate manner in accordance with the Code of Practice on Grievance and Disciplinary Procedures which she did not and I therefore conclude that complainant was not offered fair procedures as required.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
The complaint under Section 7 of the Terms of Employment (Information) Act, 1994 is well founded and I order the respondent to pay the complainant €200 in compensation.
The complaint under Section 13 of the Industrial Relations Acts, 1969 is upheld and I recommend that the respondent pay the complainant €500 in compensation.
Dated: 7th August 2019
Workplace Relations Commission Adjudication Officer: Shay Henry